Self inflicted wounds
are the worst and take longest to heal –and some never heal. That may be said
appropriately of the two judge Judgment of Supreme Court speaking through Katju J. delivered on 11 December 2007 while setting aside High Court
judgment which had directed the state to regularize the plaintiff gardner as a truck driver to which post he had been working
for 10 years.

But then the Supreme Court went
on to pronounce on the supposed limitations of Public Interest Litigations (PIL) a question not arising in the
case, an exercise frowned upon by Supreme Court almost 40 years back thus;
“Obiter observations and discussion of problems not directly involved in any
proceeding should be avoided by courts in dealing with all matters brought
before them, but this requirement becomes almost compulsive when the Court is
dealing with constitutional matters”. (though I may
agree with some observations regarding High Court matters)

But it is embarrassing
when it says about 3 judge Bench judgments in “Jagadambika Pal’s case of 1998, and the Jharkhand Assembly case
of 2005, that they are two glaring examples of deviations from the clearly
provided constitutional scheme of separation of powers”.

Bench observation that constitutional trade off for
independence is that judges must show judicial restraint is hurtful if it
suggests that judges must look over their shoulders lest the executive feels
annoyed at their decisions. Independence of judiciary and judicial review are
the very life blood of the Constitution. It is not dependant on
the creature of the constitution like the legislature or the Executive.
Judiciary has always followed the hallowed maxim ‘ Let Heavens fall – but
justice must be done’ Judiciary is not weak, nor the people at large so
spineless that the arrogant empty threats of temporarily elected Executive and
Legislature can deflect the judiciary from its path of Constitutional rectitude
and duty.

Chief Justice Earl
Warren of United States Supreme Court quoted the observations of Daniel Websterwherein
he said, ‘the maintenance of the judicial power is essential and indispensable
to the very being of this Government. The Constitution without it would be no
Constitution, the Government no Government.’

Let us recollect the
wise words of Alexander Hamilton, one of the framers of the American
Constitution, who stated, “that the courts weredesigned
to be an intermediate body between the people and the Legislature in order
among other things to keep the latter within the limits assigned to their
authority. Judges, though they may not be omniscient or for that matter
philosopher - kings, are betterequipped
forthe taskso long as they are aware of their
limitations.”

The criticism of
judicial activism as such is untenable.Courts have since long been judicially active in giving relief in social
action litigation to labour, to victims of custodial
violence, to the excesses committed by the Executive.But as previously judicial targets were
comparatively junior officials and certainly never involving politicians, issue
of judicial activism was not raised by the executive.This charge of alleged interference by the
Courts has only now been put in issue because the fire of judicial activism is
coming nearer home to the high officials and politicians who had falsely
hypnotized themselves into believing that they were above the law even though
as far back as over 300 years Chief Justice Coke of England had said “Be you
ever so high, the law is above you.”

It will thus be amply clear that judiciary (barring
some rare escapades) as mentioned in two- judge judgment is aware of its
precise role in the constitutional set up. So when seemingly interested people
mostly politicians accuse it of overstepping its constitutional limits, the
anger is borne more out of frustration at their partisan actions being
challenged before the judiciary rather than the usurpation of power and
jurisdiction by the courts.

The U.S. Supreme Court
struck down several legislations made by U.S. Presidents and Senate. There were
severe uproars, but the orders of the Court were enforced. This was illustrated
in the case of Brown v. Board of Education which attracted the ire of
the white majority and even federal troops were called to enforce Court
decision – incidentally Bench has praise for Brown decision.

The bald assumption that judges are not aware of
their limitations has been succinctly answered by the wise observations by PatangliShastri C.J. in 1953
Judgment thus. “If then, the Courts in this country face up to such important
and none too easy task, it is not out of any desire to tilt at legislative
authority in crusader’s spirit, but in discharge of a duty plainly laid upon
them by the Constitution - and that while the Court naturally attaches great
weight to the legislative judgment, it cannot desert its own duty to determine
finally the constitutionality of an impugned statue”.

Frankly I do not think a
reference to a larger bench would in any way help. Public interest litigation
is not a civil or criminal jurisdiction, it is an innovating mechanism evolved
by judiciary, sanctified as it is by the very compulsions and jurisprudence of
written constitution.

There is no gainsaying that;
“Judges’ decisions are influenced by what writers like Pound and Frankfurter
called ‘sociological jurisprudence’ and the Justice Holmes called the “major
inarticulate premise”. Therefore reference to a larger bench would only get an
answer that it will depend on facts of each case.

I remember that in 1983
a two Judge Bench referred to the constitutional Bench various questions,
arising out of Public Interest Litigation so as to give
proper guidelines. In 1995-96 when this matter came up before the
Constitutional Bench, it was disposed of with the remarks that much case law
has already laid down various guidelines and it was not necessary to have a
regular hearing. I feel the same history will be repeated, if a matter is
referred to a larger Bench now. So it will be an exercise in futility.

But I do believe there
is easier and responsive alternative. I would therefore hope that the Bench now
having been made aware of misapprehensions troubling undoubted friends of
judiciary, though at the same time appreciating also the genuine concern of the
Bench about judiciary not over relating its jurisdiction, would in order to give
quietus to this controversy themselves recall their observations. This would show their
appreciation of sentiments expressed by members of public and legal fraternity. Once it is done judiciary would be freed from the flurry
of market place gossiping and an easy target of ridicule by the Executive and
Legislature. Let no one talk disparagingly of judiciary.